This agreement (“Agreement”) is effective as of the effective date specified in the Order Form (the “Effective Date”) and is entered into by and between and/or, as applicable depending on Solutions provided under this Agreement, Transcendent Solutions, LLC, Hotel Effectiveness Solutions, LLC, FivePals, Inc., Profitsword, LLC, and/or Actabl Services, LLC (“Actabl”) and the Customer identified in the Order Form. Actabl and Customer are referred to herein each individually as a “Party” and collectively the “Parties.” In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Actabl will provide Customer with online access to and use of the Solutions during the Term via the internet by useof a Customer-provided browser and hardware (e.g., desktop computer, iPad, iPhone, etc.) and will provide the Implementation Services.
2. Access and Use
2.1 License. Subject to the terms and conditions of this Agreement and the payment of the Fees, Actabl grants Customer a limited, non-exclusive, non-transferable right to allow Customer’s Authorized Users (as defined below) during the Term solely for Customer’s internal business purposes to access and use the (a) Solutions and Documentation and (b) Actabl Data (defined in Section 3.2 below),Data Schema, Data Model, and Data Tools and (c) if applicable, the Actabl API.
“Authorized Users” means those employees, agents and independent contractors of Customer who are authorized by Customer to usethe Solutions. This Agreement grants Customer only the right to use the Solutions, and does not convey or transfer title or ownership of the Solutions, any underlying technology or software, or any intellectual property rights in any of the foregoing to Customer. Customer is responsible and liable for its Authorized Users’ compliance with and/or breach of the terms of the Agreement. All rights not expressly granted in this Agreement are reserved by Actabl, and no other licenses are granted in this Agreement by Actabl by implication, estoppel or otherwise.
“Actabl API” means Actabl’s application programming interfaces and all related instructions, documentation; the specific programmatic calls to use the application programming interfaces.
“Data Model” means any rendering, conceptualization, organization, graphic, documentation, and/or description of any data, relationships among data, and/or consistency constraints.
“Data Schema” means the names and attributes of the Actabl Data, including table names, data fields, data types, and the relationships between these the table names, data fields, and data types, and the SQL queries used to obtain and use the Actabl Data.
“Data Tools” means any tools, services, procedures provided by Actabl to Customer in order to access, query, or manipulate Actabl Data.
2.2 Documentation. Customer may print, copy and internally distribute program documentation, user manuals, training materials, webinar recordings, product technical manuals and other information (either provided directly by Actabl or made available by Actabl online) describing the operation and use of the Solutions if and as available (the “Documentation”), for its internal business purposes only; provided, that Customer replicates all copyright and other proprietary rights notices contained in the original copy of theDocumentation. Any Documentation and any copies made are the property and Confidential Information of Actabl.
2.3 Restrictions. The Solutions constitute protected copyrighted material and valuable trade secrets of Actabl. Accordingly, Customer will not: (a) authorize or permit use of the Solutions or Documentation by persons other than its Authorized Users; (b) sublicense, lease, rent, loan or otherwise transfer to any third party the right to access and use the Solutions; (c) use or access the Solutions for the purpose of building a competitive product; (d) copy, frame, modify or create any derivative works of the Solutions (or any component, part, feature, function, user interface, or graphic thereof) or Documentation; (e) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Solutions is compiled or interpreted; (f) use the Solutions as part of a time-share, cloud services or service bureau or on a hosted basis for its own ASP or SAAS offerings; (g) perform or disclose any benchmark or performance tests of the Solutions without Actabl’s prior written consent; (h) perform or disclose any security testing of the Solutions or associated infrastructure without Actabl’s prior written consent including, but not limited to, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; (i) remove or modify any program markings or any notice of Actabl’s or its licensors’ proprietary rights; (j) use the Solutions in violation of applicable laws; (k) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (l) send or store malicious code in connection with the Solutions; or (m) cause or permit any Authorized Users or any other party to do any of the foregoing.
2.4 Passwords. Actabl will provide Customer with passwords and other credentials required to enable Customer’s Authorized Users with access to the Solutions. Customer is solely responsible for maintaining the security and confidentiality of its Authorized User’s login information and credentials for its subscription to the Solutions, and is responsible for any use of the Solutions utilizing such information and credentials. Login credentials and passwords are assigned on a named user basis and may not be shared by multiple individuals.Customer may not (i) permit login password codes to be cached in proxy servers and accessed by individuals who are not Authorized Users, or (ii) permit access to the Solutions through a single identification or password code being made available to multiple users on a network.
2.5 Customer Responsible for Providing Connectivity and Equipment. Customer is responsible for providing its Authorized Users with an internet connection as well as currently-supported browsers and any necessary equipment or hardware needed to access the Solutions.
2.7 Business Intelligence Solutions. This section only applies to certain business intelligence solutions
(a) Systems Integrations. Customer represents and warrants that attached Exhibit B is an accurate listing of all of the systems utilized by the Properties. Exhibit B has been prepared by Actabl based on information provided by Customer. Customer will promptly notify Actabl prior to installation of the Solutions of any inaccuracies in, and if any changes should be made, to Exhibit B. Customer will provide (or will cause Customer’s vendors to provide) data in a form that Actabl can import into the Solutions, as determined by Actabl(“consumable data”). Actabl will use commercially reasonable efforts to develop a data import for the systems listed in Exhibit B in connection with the installation of the Solutions that allow for the electronic transmission and input of the consumable data into theSolutions for purposes of developing the Solution outputs for Actabl. Notwithstanding the foregoing, Customer acknowledges and agrees that Actabl does not guarantee that it will be able to develop a data import, at no charge, for every system listed on Exhibit B. If Actabl determines that the development of a data import for any of the systems will be particularly complex and/or time consuming or will fall outside of the project scope, Actabl will inform Customer of available options, which may include additional fees that will be payable to Actabl if Actabl is required to perform development services in connection with such data import(s). Actabl is obligated to perform development services in connection with those data import(s) until both Parties have signed a change order request and related statement of work, and Customer has paid Actabl the agreed-upon additional fees. If Customer (or Customer’s vendors) do not provide consumable data to Actabl in connection with the data import process or thereafter, Actabl will notify Customer and Customer has 30 days to provide the consumable data to Actabl. If Customer fails to provide the consumable data to Actabl during such 30- day period, this Agreement remains in effect, but Actabl does not have any obligation under this Agreement to provide reports, output or services that rely on, or use, consumable data.
(b) Project Scope. The Parties agree that Actabl’s scope of work (“Project Scope”) is as listed on attached Exhibit C. Customer acknowledges and agrees that no changes to the Project Scope is effective unless both Parties execute a charge order in accordance with the change control process set forth in Exhibit C.
3.1 Customer Data.As between Customer and Actabl, Customer owns all right, title, and interest to the specific data and information about the Customer, it’s hotel(s), and its employees submitted, processed, or stored by Customer and Authorized Users using theSolutions (the “Customer Data”). Customer is solely responsible for the accuracy and quality of the Customer Data. The Parties agree that under no circumstances will Actabl be responsible or have any liability for Customer’s or an Authorized User’s use of the CustomerData. Customer and each Authorized User are responsible for updating its own Customer Data.
3.2 Actabl Data. As between Customer and Actabl, Actabl owns (a) all the information, data, documents and any other output results generated by queries, data feeds, and any use of and access to the Solutions by Customer; (b) all aggregated, calculated, and/or derived data of or from Customer Data; (c) all data that is created by combining Customer Data with other data; and (d) all benchmarking, comparisons, and/or other analyses based on, incorporating, and/or derived from Customer Data. Sections 3.2(a), (b), (c) and (d) are collectively “Actabl Data.” Actabl will de-identify Actabl Data so that the Customer, Authorized Users, and/or Guests cannot be identified.
Each Party will maintain commercially reasonable administrative, physical and technical safeguards designed to help protect the security of its internal networks from malicious activity and to provide for the privacy, confidentiality and integrity there of. Neither Party is liable for breaches of security caused by the other Party’s (or in the case of Customer, an Authorized User’s)failure to secure its networks or any access information, including login credentials and passwords. Customer will ensure that Customer will not introduce any malicious software into the Solutions or which, upon the occurrence of a certain event, the passage of time, or the taking of or failure to take any action, would cause Solutions to be destroyed, damaged, or rendered inoperable.
5.1 Compliance with Laws. Customer represents and warrants that (a) Customer will use the Solutions only in accordance with all applicable laws, policies, rules, regulations, agreements, including but not limited to data protection, data privacy, anti-spam, Telephone Consumer Protection Act, and other similar laws and regulations; and (b) it has the right to provide information, personally identifiable information, content or data to Actabl.
5.2 Required Consents. In order to carry out its responsibilities under this Agreement, Actabl may need access to, and/or Customer may provide access to, software, databases, materials, products, hardware, Customer Data and Customer trademarks, trade names, service marks, logos and other similar indicia of origin (collectively “Customer-Provided Materials”). Customer represents and warrants to Actabl that is has obtained all consents, authorizations or permissions necessary for Actabl to access and use each item of Customer-Provided Materials (including without limitation any consumer consent and its employees’ consent required to provide the Solutions) as well as any consent required for communications with individuals (collectively “Required Consents”). Customer is responsible for determining the appropriate disclosures and level of consent required under the law as it is related to its business. Customer hereby grants Actabl a non-exclusive, worldwide, royalty-free, paid-up, transferable and sub-licensable license in and to the Customer-Provided Materials for purposes of providing the Solutions and Implementation Services during the Term.
5.3 CCPA.To the extent applicable to a Party, each Party represents and warrants that it complies and will continue to comply in all respects with the California Consumer Privacy Act of 2018, as amended (codified at Cal. Civ. Code § 1798.100, et seq.) (the “CCPA”) and all regulations and judicial opinions issued related thereto. With regard to Personal Information (as defined under the CCPA) Actabl possesses or controls in connection with the Solutions provided by it to Customer, Actabl understands and agrees that it will not (i) sell (as defined under the CCPA) such Personal Information or (ii) retain, use, or disclose such Personal Information except as permitted under the terms and conditions of this Agreement by and between Customer and Actabl.
5.4 KYC. Customer represents and warrants that Customer and its Affiliates are and will not be owned or controlled by, a Sanctioned Person, and no officer or director nor, to the knowledge of Customer, any employee, agent, representative or Affiliate of any such person is a Sanctioned Person. Customer will exercise reasonable care, including by undertaking appropriate due diligence, to ensure that Customer does not directly or indirectly use [the services being provided pursuant to this Agreement, or otherwise make such services available] to any Subsidiary, joint venture partner, Affiliate or any other person or entity in any manner that would reasonably be expected to result in any person (including any person participating in this Transaction) being in breach of Sanctions.
“Sanctioned Person” means any person, organization, or vessel (i) designated on the OFAC Specially Designated Nationals and Blocked Persons List, the EU Consolidated List, the list of Financial Sanctions Targets maintained by Her Majesty’s Treasury, or on any list of targeted persons issued under Sanctions, (ii) that is, or is part of, a government of a Sanctioned Territory, (iii) owned or controlled by, or acting on behalf of, any of the foregoing, (iv) located, organized or resident in, or operating from, a Sanctioned Territory, or (v) otherwise targeted under any Sanctions.
“Sanctioned Territory” means any country or other territory targeted by a general export, import, financial or investment embargo under Sanctions, which countries and territories, as of the date of this Agreement, include the Crimea region, the separatist-controlled portions of the Donetsk and Luhansk regions of Ukraine, Cuba, Iran, North Korea and Syria.
“Sanctions” means any economic or financial sanctions administered by the US Treasury Department’s Office of Foreign Assets Control (OFAC), the US State Department, or any other governmental agency of the US government, the United Nations, the European Union or any member state thereof, and the United Kingdom.
6. Termination and Suspension; Term
6.1 Termination for Breach. This Agreement may be terminated by either Party, subject to the Dispute Resolution procedures in Section 14.8: (i) for the other Party’s material breach of its obligations under this Agreement, but only if such breach is not cured within 30 days of the breaching Party’s receipt of written notice of the breach that described the breach in reasonably sufficient detail; (ii) delay in payment or nonpayment of fees that lasts more than 30 days from the date such payment was due; or (iii) actions or omissions of a Party that subject the other Party to actual or potential civil or criminal liability.
6.2 Effect of Termination. Upon the termination or expiration of this Agreement (the “Termination Date”), the rights and licenses, except where otherwise provided (e.g., Section 14.2 below), that were granted to each Party under this Agreement will cease. Except for a termination of this Agreement for Actabl’s uncured breach, Customer will make payment to Actabl for all unpaid Services up to the Termination Date, within 10 days of Customer’s receipt of Actabl’s invoice.
6.3 Suspension of Services. Actabl may suspend Customer’s access to or use of the Solutions as follows: (a) immediately if Actabl reasonably believes Customer’s use of the Solutions may pose a security risk to or may adversely impact the Solutions; (b) immediately if Customer uses the Solutions in any manner inconsistent with this Agreement, the Order Form, or the documentation.
6.4 If not designated on the respective Order Form, the Agreement will begin on the Effective Date and then continues until the third anniversary of the Effective Date (the “Initial Term”). Following the Initial Term, the Agreement will automatically renew for successive one-year terms (each, a “Renewal Term” and together with the Initial Term, collectively, the “Term”), unless one Party provides written notice to the other at least 90 days’ prior to the expiration of the Initial Term or Renewal Term (as applicable) of its intention not to renew this Agreement. For the avoidance of doubt, if the Order Form has its own Term definition, then this Section 6.4 does not apply.
7.1 Fees; Payment Terms. . Customer must pay any one-time fees (e.g., Implementation Services) and the first payment of the Fees forthe Solutions before the Solutions are made available to Customer but no later than 45 days from the Effective Date (even if theSolutions haven’t been implemented). Thereafter, Customer will pay to Actabl the applicable Fees set forth in the Business Terms at the billing cycle (as set forth in the Business Terms) and by the dates set forth in the Business Terms or, if no date is set forth in theBusiness Terms, within 30 days from date of receipt of invoice. Past due balances are subject to interest equal to the lower of 1 ½% per month or the maximum rate allowed by law. Actabl may, at its discretion, engage third parties to assist in the collection of past due accounts. Customer will be liable to Actabl for all reasonable costs of third-party collection activity, including attorneys’ fees, resulting from Customer’s past due account. In addition, Actabl may restrict or remove access to the Solutions until such invoices are paid in full if Customer has not paid within 60 days of the date set forth in the Business Terms or, if no date is set forth in the Business Terms, within 60 days of Customer’s receipt of invoice. Actabl may send invoices and accept payment through one or more of its affiliates and Customer will pay all Fees to such designated affiliate(s) (i.e., Transcendent Solutions, LLC, Hotel Effectiveness Solutions, LLC, FivePals, Inc., Profitsword, LLC, and/or Actabl Services, LLC).
7.2 Fee Increases. Actabl may increase the Fees each Renewal Term by giving written notice to Customer and/or by including the increase in the Fees within the next applicable invoice.
7.3 Expenses and Other Charges. Customer will reimburse Actabl for all pre-approved travel and other expenses incurred in the performance of the Implementation Services (“Expenses”). Upon request, Actabl will provide reasonable back-up documenting the Expenses. Customer will pay the Expenses in accordance with Section 7.1.
7.4 Third-Party Charges. Customer will pay for all third-party charges related to its use of any Third-Party Services (defined in Section 13.3 below), e.g., SMS texting fees charged by Twilio, PMS integration fees, etc. (“Third-Party Charges”). Customer will pay the Third-Party Charges in accordance with Section 7.1.
7.5 Taxes. Customer will pay for any taxes, including but not limited to federal, state and local sales, use, excise, ad valorem, value-added, taxes on royalties, withholding taxes, and/or any other taxes and duties (“Taxes”) imposed on the purchases, use, license, and/or provision of Solutions (including Implementation Services, or other services, where applicable). Actabl will use commercially reasonable efforts to include any applicable Taxes on invoices. If Taxes are not included on invoices, Customer has a duty to self-report and will indemnify Actabl should any Taxes go unreported or unpaid to a taxing jurisdiction. If Customer produces supporting documentation certified by state authority authorizing Customer to pay such Taxes directly, then Actabl will gross up and add such amounts to the fees and withhold from including such Taxes on invoices. It is agreed that each Party will be responsible for any personal property taxes on property it owns or leases, for franchise and privilege taxes on its business, and for taxes based on its income and receipts.
8. Actabl Property
8.1 Generally. Actabl owns all right, title and interest in and to the Actabl Property. “Actabl Property” means (i) the Solutions (and any and all developments, modifications, and derivative works of the Solutions), (ii) any improvements, modifications, suggestions, work product, concepts, inventions, information, drawings, designs, programs, or software (whether developed by Actabl, Customer, either alone or with others, and whether completed or in-progress) created as part of the Implementation Services and/or to any extent related to the Solutions, (iii) any materials provided by Actabl to Customer or an Authorized User with respect to the Solutions, including but not limited to any Documentation, software (whether in object code or source code form), proprietary data, or other proprietary information developed or provided by Actabl or its suppliers, such as text, graphics (including the underlying web-presentation code of the Solutions), logos, button icons, images and any non-public know-how, methodologies, equipment, or processes used by Actabl to provide the Solutions to Customer; (iv) Actabl Data, Data Schema, Data Model, Data Tools, and Actabl API; and(v) all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
8.2 No Sale. This Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights to any Actabl Property are transferred to Customer under this Agreement. Actabl reserves all rights not expressly granted by this Agreement and no licenses are granted by Actabl to any party, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
8.3 Assignment. To the extent that Customer or any User owns any copyright, patent, trade secret, or any proprietary rights in and to the Actabl Property, Customer hereby assigns to Actabl, its successors and assigns, and Customer will cause all Authorized Users to assign to Actabl, its successors and assigns, all right, title and interest in and to the Actabl Property, including, but not limited to, all rights in and to any inventions, designs and intellectual property rights embodied in the Actabl Property. Customer will execute, and cause any User to execute, any documents in connection with such assignment that Actabl may reasonably request. Customer appoints Actabl as its attorney-in-fact to execute assignments of, and register all rights to, the Actabl Property and the intellectual property rights in the Actabl Property. This appointment is coupled with an interest. Customer will enter into agreements with its Authorized Users or any other party as necessary to establish Actabl’ssole ownership in Actabl Property, and upon Actabl’srequest, Customer will provide Actabl with copies of such agreements.
A party receiving Confidential Information (“Recipient”) may not disclose Confidential Information except to its employees and agents with a need to know and who are bound by confidentiality agreements as restrictive as this Section 9. “Confidential Information” (a) means all information disclosed during the Term to Recipient by the party disclosing Confidential Information (“Discloser”) in any manner, whether orally or in tangible form or whether created by Discloser or Recipient, but if in tangible form it is marked as “confidential information” or would be considered to be confidential by a reasonable person and, if it is disclosed orally, it is written within 2 days of disclosure and declared as confidential under this provision, (b) but does not mean information that (i) was in Recipient’s possession prior to disclosure by Discloser prior to the Effective Date, (ii) is in the public domain and is generally known, (iii) has come into possession of Recipient by a third party that is not under any confidentiality obligation with Discloser, or (iv) was developed by Recipient independently and without reference to the Confidential Information. This Agreement and Actabl Property are Confidential Information.
10. Additional Representations and Warranties
Customer represents and warrants that: (i) it has the power and authority to enter into and perform its obligations under this Agreement; (ii) the Customer Data and Customer-Provided Materials (a) do not and will not infringe or misappropriate the intellectual property rights of any third party, (b) do not and will not violate any applicable law, statute, ordinance, regulation or treaty, (c) will not be defamatory, libelous, unlawfully threatening or harassing, (d) will not be obscene or indecent, and (e) will not contain any viruses or other computer programming routines that could damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information of any person or entity, and (iii) that it will comply with all applicable laws, regulations, policies, and rules including those relating to data privacy, consumer protection, marketing, promotion, text messaging, chat bot, email, direct mail, and other communications or otherwise applicable to its use of the Solutions.
11. Disclaimer of Warranties
EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF, AND ACTABL SPECIFICALLY DISCLAIMS, ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT ACTABL, ITS LICENSORS AND THEIR SUPPLIERS MAKE NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER REQUIREMENTS OR BE ERROR-FREE OR WITHOUT INTERRUPTION; THAT ALL ERRORS WILL BE CORRECTED; THAT THE SERVICES WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK; OR THAT CUSTOMER SPECIFIC REQUIREMENTS WILL BE SATISFIED. CUSTOMER ASSUMES RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM THE SERVICES.
12.1. By Actabl. Actabl will indemnify, defend and hold Customer, its owners, officers, employees, agents, successors and assigns harmless from and against any and all third-party claims, actions, proceedings, judgments, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising from claims by any third party that Customer’s use of the Solutions in accordance with this Agreement and the Documentation infringes or misappropriates the intellectual property rights of such third party, provided that Actabl will have no obligation to defend, indemnify and hold Customer harmless for claims of infringement if (a) Customer or an Authorized User modifies the Solutions, (b) Actabl complies with the written designs or specifications supplied by Customer, (c) Customer or an Authorized User combines the Solutions with any products or services not provided or licensed by Actabl and that combination is the source of infringement, (d) Customer or an Authorized User fails to strictly adhere to Actabl’s instructions for the use and maintenance of the Solutions. In addition to the foregoing indemnification, if Actabl determines, in its reasonable judgment, that the Solutions, or any portion thereof, violates or infringes any third party intellectual property rights, Actabl, at its sole option and expense, may: (i) obtain forCustomer the right to utilize the Solutions; (ii) make the Solutions non-infringing without materially diminishing the utility to Customer of the Solutions; or, i
12.2. By Customer. Customer will indemnify, defend and hold Actabl, its owners, officers, employees, agents, successors and assigns harmless from and against any and all third-party claims, actions, proceedings, judgments, losses, liabilities, costs and expenses(including attorneys’ fees) arising from claims by a User or any third party that (i) relate to a use of the Results; (ii) are based on or caused by unauthorized access to the Solutions using a Customer password or account obtained from Customer or a User; (iii) result from any failure to obtain any Required Consent; (iv) the use and/or failure to use the Data Deletion Functionality (defined below); and(v) the Customer Data, Customer-Provided Materials or other materials provided Customer or an Authorized User, or use thereof in connection with this Agreement, infringes or misappropriates the intellectual property rights of such third party; (v) are caused byCustomer’s or an Authorized User’s gross negligence or willful misconduct.
12.3. Procedure. It is further agreed that (i) the Party who is obligated to provide indemnification (the “Indemnifying Party”) will be notified in writing promptly by the Party seeking indemnification (the “Indemnified Party”) of any such claim or demand (provided that the Indemnifying Party will only be relieved of its obligations if and to the extent that it has been actually prejudiced by the IndemnifiedParty’s failure to give notice as required); (ii) the Indemnifying Party will have sole control of the defense of any action or such claim or demand and of all negotiations for its settlement or compromise provided that any settlement or compromise which requires any admission of liability, affirmative obligation or any contribution from the Indemnified Party must be expressly approved in advance in writing by the Indemnified Party; and (iii) the Indemnified Party will use all commercially reasonable efforts to cooperate with theIndemnifying Party in a reasonable way and at the Indemnifying Party’s expense to facilitate the settlement or defense of such claim or demand. The Indemnified Party may, at its expense and option, use counsel of its choosing in connection with the defense of any such claim.
13. Limitations on Damages
13.1 DISCLAIMER OF CERTAIN DAMAGES. EXCEPT FOR AMOUNTS PAYABLE BY CUSTOMER, THE INDEMNIFICATION OBLIGATIONS IN SECTION 13 OR CUSTOMER’S BREACH OF SECTION 2.3 OR MISAPPROPRIATION OF ACTABL’S INTELLECTUAL PROPERTY RIGHTS, NEITHER ACTABL NOR CUSTOMER WILL HAVE ANY LIABILITY UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSES. FOR THE AVOIDANCE OF DOUBT, ACTABL HAS NO LIABILITY UNDER THIS AGREEMENT (A) TO THE EXTENT THAT CUSTOMER HAS NOT USED THE DATA DELETION FUNCTIONALITY (defined below) AND/OR THE DATA DELETION FUNCTIONALITY WAS USED BUT THE DAMAGES WERE CAUSED BECAUSE OF THE LENGTH OF TIME THE RETENTION PERIOD WAS SET IN THE DATA DELETION FUNCTIONALITY, (B)ANY THIRD-PARTY SERVICES (defined below), OR (B) FOR ANY CLAIM BY ANY THIRD PARTY (INCLUDING ANY CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSES). IN ADDITION, ACTABL IS NOT LIABLE TO CUSTOMER FOR (A) CUSTOMER’S COMPUTER NETWORK OR FOR ANY CONNECTIVITY OR OTHER RELATED ISSUES THAT PREVENT CUSTOMER FROM GAINING ACCESS TO THE SOLUTIONS, (B) ERRORS RESULTING FROM DEFECTS IN, OR MALFUNCTIONS OF, THE MECHANICAL OR ELECTRONIC EQUIPMENT USED BY CUSTOMER IN CONJUNCTION WITH THE SOLUTIONS, (C) ANY FAILURE OF THE ACTABL’S CLOUD SERVICES PROVIDER(S) (e.g., Amazon Web Services) TO OPERATE PROPERLY AND/OR (D) ANY BREACHES, ERRORS OR OMISSIONS OF THE CLOUD SERVICES PROVIDER(S). THESE LIMITATIONS IN THIS SECTION 13.1 WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
13.2 LIMITATION OF LIABILITY. EXCEPT FOR AMOUNTS PAYABLE BY CUSTOMER, THE INDEMNIFICATION OBLIGATIONS IN SECTION 12, OR CUSTOMER’S BREACH OF SECTION 2.3 OR MISAPPROPRIATION OF ACTABL’S INTELLECTUAL PROPERTY RIGHTS, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION BROUGHT UNDER OR ASSOCIATED WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO ACTABL FOR THE MOST RECENT ONE YEAR PERIOD OF THE AGREEMENT UP TO THE DATE SUCH LIABILITY AROSE. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), AND STRICT LIABILITY. THESE LIMITATIONS IN THIS SECTION 13.2 WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
13.3 Related Definitions.
(a) Data Deletion Functionality. Some Solutions include functionality that enable Customer to delete personally identifiable information and set retention periods for personally identifiable information, e.g., delete all personally identifiable information for each guest after three months from check out (the “Data Deletion Functionality”).
(b) Third-Party Services. There are some services provided by third parties through the Solutions (the “Third-Party Services”), e.g., SMS and other communications capabilities are provided by telecommunications providers and communications platforms such as Twilio.
13.4 Applicability of Disclaimers and Limitations. The Parties agree that Actabl has set the fees and entered into this Agreement in reliance upon the disclaimers and limitations set forth in this Agreement, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.
14.1 Non-Exclusive. The relationship created by this Agreement is non-exclusive in all respects.
14.2 Rights and Survival. Except where specifically provided, termination of this Agreement will be without prejudice to any other rights that either Party may have at law or in equity. The following Sections of this Agreement will survive its expiration or termination: 3, 5, 7, 8, 9, 10, 11, 12, 13, and 14.
14.3 Notices. Notices will be given in writing and may be delivered by U.S. mail, overnight delivery service, or personal delivery to the intended recipient of the notice at the address noted in the Order Form. Notice will be deemed delivered when received or one business day after deposit with an overnight delivery service for next day delivery, whichever is earlier. A Party may change a contact upon 10 days’ written notice to the other Party, which notice will contain the new contact information as set forth above.
14.4 Force Majeure. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of such events as, but not limited to, flood or other natural disaster, riot, fire, judicial or governmental action, labor disputes, actions or failures of the hosting or internet service provider or of any telecommunications service providers or facilities in the chain of communication to and from Actabl’s servers, sabotage or criminal interference with the server or Solutions or any other causes beyond the control of either Party (a “Force Majeure Event”), the Party experiencing the Force Majeure Event will be excused from performance to the extent that it is prevented, hindered or delayed by such causes, except with respect to Customer’s obligations to pay any fees. Each Party agrees to give the other notice as soon as possible of the existence of a Force Majeure Event affecting the Party’s performance and to give notice of the termination of the Force Majeure Event and the ability to continue performance under the Agreement.
14.5 Separate Parties; No Third-Party Beneficiaries. The Parties agree that nothing in this Agreement will be construed to create a partnership, joint venture, franchise, or employee-employer relationship among Actabl, Customer or any Authorized User. Actabl will perform the Services as an independent contractor. Neither Actabl nor Customer is an agent of the other, and neither is authorized to make any representation, contract or commitment on behalf of the other unless specifically requested or authorized to do so in writing by the other. No person not a party to this Agreement is an intended beneficiary of this Agreement, and no Auhtorized User or any other person not a party to this Agreement will have any right to enforce any term of this Agreement.
14.6 Right to Update. Actabl reserves the right to make visual or functional modifications to the Solutions from time to time for the purpose of maintaining or improving security, ensuring optimal performance, meeting standard industry business requirements, and adding or improving functionality, which may require Customer to purchase new hardware (e.g., iPads, smart phones, etc.). Actabl reserves the right to make such changes but will use reasonable efforts to give written notification to Customer.
14.7 Entire Agreement. This Agreement, including the Order Form and any document incorporated in this Agreement by reference, states the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all previous proposals, negotiations and other written or oral communications between the Parties. Any terms and/or conditions in Customer’s pre-printed purchase orders or order forms will have no force or effect.
14.8 Dispute Resolution. The Parties agree that if one of them believes that the other has breached or is about to breach this Agreement or Customer disputes an Actabl charge appearing on a bill, the complaining Party will give immediate written notice to the other of the complaint. The Parties will enter into good faith negotiations for a reasonable resolution of the complaint within 10 business days of the Party’s receipt of the complaining Party’s notice. If the alleged breaching Party is unable to cure the alleged breach or billing dispute to the complaining Party’s reasonable satisfaction, the complaining Party will give the alleged breaching Party a clear and complete written statement of the reasons for such lack of satisfaction, and will provide such Party with 15 days to cure such issue. After such cure period, either Party may then resort to whatever remedy is available at law or equity, subject to the limitations on remedy provided for in this Agreement. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY RISING OUT OF, OR RELATED TO, THIS AGREEMENT.
14.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to any applicable law or regulation, the Parties agree that such provision will be construed so that it can be found lawful to the fullest extent possible and the remaining provisions of this Agreement will remain in full force and effect. If such provision cannot be construed in a fashion that is lawful or is otherwise found void, then the Parties agree that the remaining provisions of this Agreement will continue in full force and effect as if said void provision never existed and as long as the removal of such void provision does not alter the intent of the Parties, including the economics of the Agreement.
14.10 Assignment. Customer may not assign its rights and obligations under this Agreement without the prior written permission of Actabl. This Agreement will be binding on each Party’s permitted successors and permitted assigns.
14.11 Governing Law and Venue. This Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of Florida without regard to any principle that would require the application of the laws of another jurisdiction. Each Party hereby irrevocably submits to the exclusive jurisdiction of and venue in any federal or state court located within Hillsborough County, Florida over any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby and each Party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action or proceeding related thereto may be heard and determined only and exclusively in such courts. Each Party hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such dispute brought in such court, and any defense or right to move to dismiss or transfer any action brought in such courts on the basis of any objection to personal jurisdiction, venue or inconvenient forum for the maintenance of such dispute. Each of the Parties agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
14.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. Electronic signatures or signature in the form of handwritten signatures in a facsimile transmittal or scanned and digitized images of a handwritten signature (e.g., scanned document in PDF format) will have the same force and effect as original manual signatures.
14.13 Headings. The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of this Agreement.